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en-usTechdirt. Stories about "nintendo"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Mon, 9 Feb 2015 15:35:31 PSTNintendo's YouTuber Affiliate Plan Is A Bureaucratic Mess Of Delays And ControlTimothy Geignerhttps://www.techdirt.com/articles/20150205/05205529915/nintendos-youtuber-affiliate-plan-is-bureaucratic-mess-delays-control.shtml
https://www.techdirt.com/articles/20150205/05205529915/nintendos-youtuber-affiliate-plan-is-bureaucratic-mess-delays-control.shtml
You may remember that several months ago, Nintendo announced plans to create a YouTuber-affiliate program that would finally allow YouTube personalities to, according to Nintendo, share in the ad revenue generated by YouTube videos featuring Nintendo content. Leaving aside the notion that such videos are essentially a version of free advertising for the company, there was also a great deal of concern over how much control Nintendo wanted to leverage over the content within the videos. The wording in the agreement made it clear that access was being traded for positive coverage, essentially destroying the trust relationship between YouTube producers and their hard-won audiences.

Well, as if those concerns weren't enough, it turns out that Nintendo can't even administer to their own program appropriately, the result of which is them attempting to exert even more control. The problem? Well, it turns out too many people wanted to sign up.

Many people are still waiting for Nintendo to approve their first set of submitted YouTube creations despite the company’s promise to process videos in “two to three days.” The game publisher has acknowledged the problem, and it says that it’s still working on getting caught up. Game videos on YouTube is a big business, as that category regularly has the biggest audience of viewers and subscribers.

“Due to your enthusiasm for the program, we’re receiving a higher volume of applications to register channels and videos than expected,” reads an update on the Creator’s Program website. “It is taking longer than we anticipated to confirm the applications. We appreciate your patience as we work through them as quickly as possible.”

Given the kind of money involved in game videos on YouTube, you have to believe the request for patience is being met with glares and stares. Especially, as I mentioned above, since Nintendo appears to be a subscriber to the theory that every crises is an opportunity. In this case, an opportunity to tighten their grip on video content even more, to a degree that's actually quite stunning.

Nintendo posted an extensive whitelist of games that it has said are OK to monetize on YouTube. You can read the list for yourself, since it’s far too long to include here. For people who did want to submit their entire YouTube channels to Nintendo, the company is now saying that it will have to turn down your application if you have any uploads featuring games not on the whitelist. That includes non-Nintendo games.

“If a video within your channel contains game titles outside of the list of supported games, please remove it from the channel before registering,” reads the website. “If you are unable to remove the video from your channel, please register each video that contains game titles on the list of supported games individually.”

Except, as Nintendo also noted, the company is first completing registrations or entire channels, while the wait time for registering individual videos has ballooned. What does this mean? Well, if you actually want to get this stuff rolling, you register your entire channel. And if you do that, you have to delete any videos that aren't on Nintendo's happy-happy approved list. That's about as clear-cut an example of using a bureaucracy to shape a message through complicit media as it gets, and it should be a warning to anyone who was thinking about getting into bed with Nintendo on this YouTuber thing but hasn't yet.

Because, and this is important, this is the beginning. If Nintendo is attempting to control video producers' content this way at the beginning, imagine what they have planned once they've convinced enough producers to sign up.

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]]>who'd-have-thought?https://www.techdirt.com/comment_rss.php?sid=20150205/05205529915Fri, 6 Feb 2015 14:40:12 PSTNintendo Plans For The Future By Pretending All Of Our Smart Phones Aren't Great Handheld Gaming DevicesTimothy Geignerhttps://www.techdirt.com/articles/20150206/10035929937/nintendo-plans-future-pretending-all-our-smart-phones-arent-great-handheld-gaming-devices.shtml
https://www.techdirt.com/articles/20150206/10035929937/nintendo-plans-future-pretending-all-our-smart-phones-arent-great-handheld-gaming-devices.shtml
While Nintendo isn't necessarily known for forward-thinking when it comes to its business models, you don't necessarily expect the company to be on full-on denial mode. Coupled with its rather tragic history on treating its customers well, the gaming giant seems to make a habit out of restricting its own revenue in favor of backwards thinking. That mode of business planning appears to be progressing as Nintendo has announced that, rather than making old Nintendo games available legitimately on smart phone app stores, the company is going the other direction and looking to make smart phone games available on its 3DS mobile device.

In a recent interview with the Nikkei, Nintendo president Satoru Iwata revealed that Nintendo will be remaking more smartphone games on the Nintendo 3DS. Iwata added that the company will also be remaking old Nintendo games for the handheld. The games will be low-priced, going for a few hundred yen (a couple of bucks). That's right, instead of remaking old Nintendo games for smartphones, which anyone with a smartphone and a brain would love, Nintendo is releasing revamped and remade titles on the 3DS.

That sound you here is the collective gaming world's eyebrows raising in unison. While the 3DS product may certainly do things most smart phones cannot, that doesn't really come into play when it comes to Nintendo's back-catalog of games. Imagine, just for a moment, if Nintendo chose to go the opposite direction on this. Imagine if they suddenly made their NES, SNES, and N64 games available for purchase on smart phones, devices that are perfectly suited for running those older games. Piles of money doesn't even begin to describe what Nintendo would make from doing this.

Unfortunately, Nintendo is steeped in such a pervasive culture of wanton control that this strategy may not even have occurred to them. But they certainly must be aware that these games are already being played on smart phones, which really just drives home the notion that not making them legitimately available is simply pissing money away.

I get that Nintendo makes games for Nintendo hardware. I get it! I also get that some of these smartphone tie-ups could be big money-makers. But there are old games that people are already playing with emulators on smartphones anyway. So why not give these games a proper (and official) release?

Because, Nintendo. That's why.

Well okay then.

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]]>should-workhttps://www.techdirt.com/comment_rss.php?sid=20150206/10035929937Thu, 16 Oct 2014 12:52:01 PDTNintendo Bricks Wii U Consoles Unless Owners Agree To New EULATimothy Geignerhttps://www.techdirt.com/articles/20141013/11010528810/nintendo-bricks-wii-u-consoles-unless-owners-agree-to-new-eula.shtml
https://www.techdirt.com/articles/20141013/11010528810/nintendo-bricks-wii-u-consoles-unless-owners-agree-to-new-eula.shtmlnot allowed to alter or mess with the stuff Nintendo insists is Nintendo's. In an apparent effort to maximize the irony combo-meter, Nintendo also has been known to make sure that customers don't mess with or alter the properties those customers actually own, such as online support for games that Nintendo decided to alter long after purchase... just because.

But the cold grip of Nintendo's control over its customers' property is apparently no longer limited to games. Nintendo recently released an update for the Wii U that forces you to "agree" to a new end-user license agreement, or else it simply bricks the console altogether.

This is how Nintendo's update to its end-user license agreement (EULA) for the Wii U works, as described by Youtube user "AMurder0fCrows" in this video. He didn't like the terms of Nintendo's updated EULA and refused to agree. He may have expected that, like users of the original Wii and other gaming consoles, he would have the option to refuse software or EULA updates and continue to use his device as he always had before. He might have to give up online access, or some new functionality, but that would be his choice. That’s a natural consumer expectation in the gaming context – but it didn’t apply this time. Instead, according to his video, the Wii U provides no option to decline the update, and blocks any attempt to access games or saved information by redirecting the user to the new EULA. The only way to regain the use of the device is to click "Agree."

It immediately brings to mind Sony's similiar move with their Playstation 3 product, in which the company unilaterally pushed out an update that would strip the console of serious functionality, including the ability to run other operating systems. It was something users had specifically wanted when they bought the console, and an update was pushed out to then take it away from them, but at least the update could be refused. There were consequences to refusing the update, but it didn't brick the console. Nintendo, in other words, is now officially worse than Sony when it comes to screwing with the console property of their customers.

As the EFF post notes, this represents the latest step in a very troubling trend for consumer rights. It's a practice no longer even limited to the digital world, with physical products now including different kinds of DRM or methods to break the product if any payment issues arise. This also only continues to happen as long as customers put up with it. Nintendo may end up learning that lesson the hard way.

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]]>console-yourselveshttps://www.techdirt.com/comment_rss.php?sid=20141013/11010528810Tue, 19 Aug 2014 15:52:00 PDTNintendo Goes Copyright On Woman Making Pokemon-Inspired PlantersTimothy Geignerhttps://www.techdirt.com/articles/20140819/10013428255/nintendo-goes-copyright-woman-making-pokemon-inspired-planters.shtml
https://www.techdirt.com/articles/20140819/10013428255/nintendo-goes-copyright-woman-making-pokemon-inspired-planters.shtmlUpdate: We've had several folks communicate with us that Pokemon International does not exactly equal Nintendo. As best as we can tell, Pokemon International was in part founded by Nintendo, who retains some percentage of ownership, but Pokemon operates as a distinct entity and it was Pokemon International that sent the C&D. Thank you to everyone who made us aware of this.

We all know that Nintendo wraps itself in copyright law like some kind of really boring security blanket. Every once in a while, the company will make some noise about being more open and accommodating to its biggest fans and the like, but that noise is usually followed up by a rash of takedowns and C&D letters. The most recent battlefront Nintendo has entered in the war against its own fans is the floral planter arena. One woman, admittedly inspired by her love of the Pokemon game series, shared her design for a 3D printed planter on a commerce website.

Claudia Ng had recently purchased a 3D printer, and one of her first projects was to create the model for a Pokémon-themed planter for a friend. She posted it online, and it quickly went viral...She then put the design on Shapeways, a site that allows you to create and share your own 3D-printed objects, and once again the design blew up. It's a simple idea, but one that we've yet to see in official merchandise. The game the design came from wasn't named, but the listing made a few winking references to the Pokémon franchise. Sales went well, but of course it couldn't last.

No, it couldn't last, because Nintendo sent a cease and desist notice to Shapeways, indicating that the planter was infringing on its copyright. Shapeways complied and took the design down and all was just and right in Nintendo's world again. This, by the way, is a picture of what corporate giant Nintendo was so determined to keep from spreading.

You can certainly see why Nintendo was so super-concerned, because if you squint just right, spin around three times, and are a little drunk, that thing looks like a bulbasaur with an artichoke coming out of its ass. It should be noted, by the way, that there's no competing licensed product from Nintendo that's taking sales away or anything. Not that that fact is keeping Nintendo from wanting all the money generated in addition to the takedown, of course.

"Shapeways got a cease and desist from Pokémon International for infringement. They received this on Friday, and Shapeways took it down within the last hour," Ng told Polygon. "They are asking for all the money associated with this model and shapeways will not be printing or shipping any order for the past few days." She may be put in contact with Pokémon International, and she's not sure if anything will come from that potential meeting. This outcome isn't very surprising for anyone involved. "I thought that this would fall under the boundaries of derivative and transformative work. I'm also not a lawyer, and I guess that is the least defined of rules and regulation," she explained.

Against Nintendo, it's unlikely a simple craftsperson like Ng will prevail. And, just to be clear, given the admitted inspiration by the Pokemon character, it's not like Nintendo is exactly wrong that there is some infringement here. It's just that there's absolutely no reason to throw the legal hammer around instead of working out some kind of other arrangement with one of their biggest fans. But, hey, you know...Nintendo.

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]]>copyright i choose you!https://www.techdirt.com/comment_rss.php?sid=20140819/10013428255Wed, 18 Jun 2014 07:43:19 PDTBack To Normal: Nintendo's YouTube Plan Sounds Like A Big Bucket Of TerribleTimothy Geignerhttps://www.techdirt.com/articles/20140617/06231427601/back-to-normal-nintendos-youtube-plan-sounds-like-big-bucket-terrible.shtml
https://www.techdirt.com/articles/20140617/06231427601/back-to-normal-nintendos-youtube-plan-sounds-like-big-bucket-terrible.shtml
A couple of weeks back, I brought you news that Nintendo had announced they were creating an affiliate program for YouTubers who wanted to use its content. This seemed like it might just be good news, coming on the heels of the gaming company putting the whack on tons of "let's play" videos that covered Nintendo games, because free promotion is something to be squandered, apparently. In that post, however, I noted that there were some serious concerns about how Nintendo would approach this and whether it would attempt to exert some kind of control over video content. It turns out I massively underestimated how badly Nintendo would screw this up. The first quote in the Kotaku post contains only a hint of the problem:

"Think of it as an affiliate program where we will be providing access to executives, information, etcetera, encouraging that group of affiliates to create content on our behalf," Nintendo of America president Reggie Fils-Aime told me when I asked him for details at E3.

Did you spot the problem? You did, didn't you? Creating an affiliate program that generates extra access to Nintendo executives and all that isn't a bad idea, but focusing on using that access specifically to get "affiliates to create content on our behalf" sounds exactly like the reputation-murdering I had worried about when it comes to the trusted YouTuber names. If you're trading access to become a Nintendo sock-puppet, best of luck keeping your fan base. But it's when the interviewer specifically asked about "let's play" videos that Nintendo showed its true colors.

"When we unveil our affiliate program it'll be clear how different entities can play," Fils-Aime said. "And likely there will be a place for the kinds of examples where you reference, like, look, 'All I want to do is capture some of the content and put it out there,' not add a lot of value. There'll be a role for that. The first thing we needed to do was make sure that the content that's out there was representative of the franchises. These are our lifeblood. These are our children. We needed to make sure that the content there was reflective of what these franchises are. The next step is working with the YouTube community to provide access to information, access to executives, to help them create world-class content, leveraging our franchises."

Note that there is no promise to actually free up all that free advertising for Nintendo in the form of "let's play" videos. All there is are a lot of maybes, might-bes, could-bes, and, oh by the way, we don't think those kind of videos actually have a whole lot of value anyway. Add on top of that a good old-fashioned dose of that Nintendo protectionism and we're right back where we started. Nintendo will allow content it likes and take down content it doesn't feel is "representative." For the YouTube personalities that have built up their reputations as game reviewers and let's-play makers, they shouldn't be touching this affiliate program with a ten-foot pole.

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]]>bzzzzt-wrong-againhttps://www.techdirt.com/comment_rss.php?sid=20140617/06231427601Wed, 28 May 2014 13:57:34 PDTNintendo Has A Plan To Share Ad Revenue With YouTubers, But Nobody's Happy About ItTimothy Geignerhttps://www.techdirt.com/articles/20140528/06182227376/nintendo-has-plan-to-share-ad-revenue-with-youtubers-nobodys-happy-about-it.shtml
https://www.techdirt.com/articles/20140528/06182227376/nintendo-has-plan-to-share-ad-revenue-with-youtubers-nobodys-happy-about-it.shtml
Roughly a year ago, Nintendo began a bold plan of declaring war on well-known YouTubers who created "let's play" videos using Nintendo IP. Well, perhaps war isn't the right word. Suddenly and swiftly, it claimed these YouTube videos through the site's system that then allowed it to push ads into the videos, the revenue for which it shared between YouTube and itself, leaving the videomakers out in the cold. It was misguided in several ways, the most obvious being that these kinds of videos and their creators are essentially free advertising for Nintendo, getting the word out to potential customers about games they may then pick up. It strains the mind to think of any large numbers of people who might substitute a "let's play" video for actually playing the game themselves, but Nintendo is Nintendo, so the company opted for control over goodwill.

Nintendo's statement came from a series of messages on its Japanese Twitter account that mentioned "several affiliate programs" for YouTube users that would allow them to "receive a portion of the advertising revenue" coming from videos featuring gameplay footage. I reached out to the company for additional information, and here's what a representative from Nintendo of America had to say:

"Nintendo has been permitting the use of Nintendo copyrighted material in videos on YouTube under appropriate circumstances. Advertisements may accompany those videos, and in keeping with previous policy that revenue is shared between YouTube and Nintendo. In addition, for those who wish to use the material more proactively, we are preparing an affiliate program in which a portion of the advertising profit is given to the creator. Details about this affiliate program will be announced in the future."

On the surface, this seems like a huge step in the right direction. The once monolithic stance on collecting all the revenue possible from these videos is finally giving way to a program that will allow some of the fan-gathering YouTube personalities to have some skin in the game. You'd think there would be praise across the board for this. You'd be wrong. Between the ill-feelings still lingering from the actions of last year and the wariness of working under the umbrella of a Nintendo affiliate program, some of the bigger names seem suspicious in this phase where details are still lacking on the program.

Zack Scott, another popular YouTuber and the one who first brought the issue to light last year after he noticed that some of the Nintendo-focused videos on his popular ZackScottGames channel were being tagged with the network's Content ID system, told Kotaku at the end of last June that he had resumed posting such work once Nintendo appeared to back away from its crackdown. I followed up with him today to see if anything had changed since his tentative return to posting Nintendo-centric "Let's Play" videos last year. He said that while he's been impacted "very, very minimally" by any changes in Nintendo and YouTube's policies so far, he could "definitely see a future" where this has a bigger influence.

"I feel the relationship between video creator and content publisher is mutually beneficial," Scott wrote in an email. "Numerous companies already understand this balance. I'd hate for the model to become where a popular creator can request revenue of a publisher in exchange for coverage. I'd equally hate for a publisher to request revenue of a creator in exchange for access."

Left unsaid is the converse: will Nintendo use its affiliate program to attempt to exert control over YouTubers' video content. Keep in mind that the Nintendo IP on display isn't really the draw in these videos. After all, there are a million such videos for a million games. The popular ones are popular because of the personality of the YouTuber. They share the stage with the game and they got their audience on a ledger of trust from the viewers. If Nintendo attempts to leverage that trust by exerting control through its affiliate program, such as by only allowing access to content in exchange for positive or non-negative editorial speech within the video, it will be a massive problem, one that will ultimately backfire in Nintendo's face, while torpedoing a bunch of YouTube personalities along with it.

Either way, the devil is most definitely in the details with this kind of program. If Nintendo makes it extremely clear that editorial content is hands-off and that the affiliate program will be free from YouTuber corruption, this might, possibly work. Given the company's history, however, I have my doubts.

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]]>all-new-questionshttps://www.techdirt.com/comment_rss.php?sid=20140528/06182227376Tue, 4 Mar 2014 16:18:00 PSTNintendo Kills Online Functionality For Wii, DS Titles, Highlighting Need For Greater User Control Over Content They Supposedly OwnKarl Bodehttps://www.techdirt.com/articles/20140303/08182626404/nintendo-kills-online-functionality-wii-ds-titles-highlighting-need-greater-user-control-over-content-they-supposedly-own.shtml
https://www.techdirt.com/articles/20140303/08182626404/nintendo-kills-online-functionality-wii-ds-titles-highlighting-need-greater-user-control-over-content-they-supposedly-own.shtmlmusic or games, we've seen countless examples of how the content you think you own can either be taken away from you entirely -- or can suddenly be greatly limited, often with little to no warning. The latest example of that is courtesy of Nintendo, which is informing users that the online components of a long list of titles for the Nintendo Wii, DS and DSi will no longer work after May 20 of this year. From Mario Kart Wii to Animal Crossing: Wild World, many of these titles will suddenly find themselves with a gaping hole where core gameplay mechanics used to be. Nintendo is telling these users that they appreciate user support of legacy systems, even if Nintendo won't support them themselves:

"We at Nintendo sincerely thank our fans for their continued support of our company’s legacy systems. Your enthusiasm for games made for these systems speaks to their longevity, and the passion of Nintendo fans."

Except if you really cared about fan enthusiasm for legacy titles, why not empower them to hack together solutions to help keep at least some core multiplayer functions in place? Because that would keep them from buying your latest hardware, even if they're perfectly happy playing older games. People have a right to worry that this phenomenon is accelerating as the newer generation of consoles become more tied to the Internet and the cloud than ever before:

"Nintendo's decision to stop running Wii and DS servers feels like the leading edge of a big expansion of this problem, though, as the first full console generation with tightly integrated online play starts to get phased out. I give the Xbox 360 and PS3 two or three more years at most before Sony and Microsoft decide it's not worth supporting servers for the aging hardware anymore. Looking ahead even further, there will probably come a day when Titanfall is no longer playable on the Xbox One because Microsoft thinks it's no longer worthwhile to support it (in that case, the game won't even have a single-player mode to fall back on)."

PC users for years have hammered together online solutions for this problem (albeit not always glamorously), and it doesn't seem like it would be a particularly taxing thing for Microsoft, Sony and Nintendo to throw a little support in the general direction of core fans, making them more likely to buy your products in the future. The alternative is a path where titles keep going up in price, while the shelf-life on their full functionality continues to decrease. Now you'll excuse me if I take one last, teary-eyed lap around Moo Moo Meadows in Mario Kart Wii -- alone.

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]]>lonely-Mariohttps://www.techdirt.com/comment_rss.php?sid=20140303/08182626404Wed, 26 Feb 2014 17:00:00 PSTDailyDirt: Not Playing To Win Can Be FunMichael Hohttps://www.techdirt.com/articles/20100315/0317258560/dailydirt-not-playing-to-win-can-be-fun.shtml
https://www.techdirt.com/articles/20100315/0317258560/dailydirt-not-playing-to-win-can-be-fun.shtml

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100315/0317258560Thu, 20 Feb 2014 10:51:00 PSTNintendo: Broader, Awful Anti-Piracy Measures Are Sure To Turn Our Fortunes Around!Karl Bodehttps://www.techdirt.com/articles/20140214/14175026233/nintendo-pushing-us-website-blocking.shtml
https://www.techdirt.com/articles/20140214/14175026233/nintendo-pushing-us-website-blocking.shtmlsales of the 3DS are up, and despite some piracy threats from recent flashcart advances, 3DS software sales are clicking right along, with Nintendo recently stating 2013 was a "record year" for both 3DS hardware and software sales, 3DS software sales in particular are up 45% year over year.

Still, low Wii-U sales leave Nintendo in a tough spot, forcing the game company into a bit of an existential crisis. What can possibly turn around the living room fortunes of one of the world's most-adored gaming companies? Developing better games? Better scrutiny of third-party game quality? Developing a less gimmicky home console with enough power to battle Sony and Microsoft while retaining Nintendo's unique charm? Leveraging the inexhaustible energy of your massive fanboy base to generate clean, renewable energy for years to come?

A large portion of Nintendo calories that could be directed to those pursuits are instead being directed at convincing the U.S government to pressure Brazil, China, Mexico and Spain into imposing tougher anti-piracy countermeasures. Nintendo informs the U.S. government they've suffered "heavy losses" in those countries, which should be encouraged to embrace blocking websites and turning ISPs into liable Internet content nannies (both things that have clearly worked so well up until now). According to Nintendo's letter to the U.S. government, 16% of all online piracy of Nintendo products traces back to Spain:

"Since so many illegal video games are downloaded in Spain from foreign-based cyberlockers, and accessed through cyberlinkers or P2P linking sites hosted outside Spain, the IPC must address this issue by authorizing the blocking of linking sites,” Nintendo writes."

Except that much of that Spanish content is hosted here in the States, where Nintendo hasn't made the same recommendations. Nintendo would also very much like it if the United States would "train" and "educate" the Spanish legal system on how to properly treat piracy (read: a swift and heavy fist entirely detached from an operational brain):

"The Spanish Government should work with the U.S. Government and rights holders to provide necessary IP training to Spanish prosecutors, judges and IPC officials, particularly focusing on Internet piracy and effective online investigation, prosecution, and adjudication of criminal copyright infringement on the Internet."

Which, again, should really be efficient since most of those sites are hosted in the United States, combined with the problem that these kinds of efforts don't work (or wind up impacting legitimate businesses and websites). My Animal Crossing animal friends go on at nauseating length about how instead of wasting energy on bad anti-piracy policy, Nintendo could instead focus that energy on better hardware and games (and perhaps a new fountain for the Animal Crossing town square) -- but what do they know.

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]]>save-the-princess-from-bad-policyhttps://www.techdirt.com/comment_rss.php?sid=20140214/14175026233Thu, 23 Jan 2014 10:49:09 PSTEurope's Highest Court Says DRM Circumvention May Be Lawful In Certain CircumstancesGlyn Moodyhttps://www.techdirt.com/articles/20140123/08532725967/europes-highest-court-says-drm-circumvention-may-be-lawful-certain-circumstances.shtml
https://www.techdirt.com/articles/20140123/08532725967/europes-highest-court-says-drm-circumvention-may-be-lawful-certain-circumstances.shtml
One of the many problems with DRM is its blanket nature. As well as locking down the work in question, it often causes all kinds of other, perfectly legal activities to be blocked as well -- something that the copyright industry seems quite untroubled by. Here's an example from Europe involving Nintendo (pdf):

Nintendo markets two types of systems for videogames: 'DS' portable consoles and 'Wii' fixed consoles. It installs a recognition system in the consoles, and an encrypted code on the physical housing system of videogames, which has the effect of preventing the use of illegal copies of videogames. Those technological protection [DRM] measures prevent games without a code from being launched on Nintendo equipment and prevent programs, games and more generally, multimedia content other than Nintendo's, from being used on the consoles.

That means that DRM is preventing users from accessing non-Nintendo games and other works that they have lawfully acquired. One company affected by this is PC Box, which sells "homebrews" -- applications from independent manufacturers -- the use of which requires the installation of software that circumvents Nintendo's DRM. As was to be expected, Nintendo is not happy about that, and so the Milan District Court has been asked to adjudicate:

Nintendo considers that PC Box equipment seeks principally to circumvent the technological protection measures of its games.
PC Box considers that Nintendo's purpose is to prevent use of independent software intended to enable movies, videos and MP3 files to be read on
the consoles, although that software does not constitute an illegal copy of videogames.

Aware that this raised an important question of law, the Milan judges asked the Court of Justice of the European Union, the EU's highest court, to clarify how the European Directive on the harmonization of copyright applied in this case. The judgment has just been handed down; here's the key part:

The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate
unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation from the copyrightholder is required. That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use
other than to circumvent the technical protection for unlawful purposes.

The Court of Justice notes that the scope of legal protection of technical measures must not be assessed according to the use of consoles defined by the holder of copyright, but that rather it is necessary to examine the purpose of devices provided for the circumvention of protection measures,
taking account, according to the circumstances at issue, of the use which third parties actually make of them.

Having made those important general points, the Court of Justice of the European Union then goes on to instruct the Milan court to consider specific issues, such as whether Nintendo could use alternative forms of DRM that allow other programs to be run, and whether PC Box's software is mainly used for legal or illegal purposes.

As well as being an eminently sensible ruling, it's potentially hugely important, because it establishes that in principle DRM may be circumvented, depending on the circumstances. It's one that is likely to be greeted with howls from the copyright industry, since it cuts right across its view that DRM is sacred, and can never be circumvented in any situation. It's refreshing to see Europe's top court adopting a more nuanced approach to copyright that recognizes that users have important rights too, and that they should not be obliged to put up with what copyrightholders impose upon them if that is disproportionate in its knock-on effects.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20091106/1133346837Fri, 18 Oct 2013 11:01:24 PDTNintendo Shuts Down Recreation Of Original Super Mario Bros. For No Reason Other Than It CanTimothy Geignerhttps://www.techdirt.com/articles/20131018/09433624925/nintendo-says-independent-recreation-original-mario-bros-is-illegal.shtml
https://www.techdirt.com/articles/20131018/09433624925/nintendo-says-independent-recreation-original-mario-bros-is-illegal.shtml
I'll never forget the Christmas party my grade school threw when I attended it. Not because of the food. Not because of the friends. No, I'll always remember it because I won a brand new in-the-box Nintendo Entertainment System in the raffle. And when we went home, my father plugged it in, allowed me to play the included Super Mario Bros. cartridge for five minutes before insisting it was time for bed. But those five minutes were everything to me that night and they spawned what would be the next 25 years of passion for gaming, for my appreciation of it as an art form, and for what has probably been thousands of dollars spent in total.

So, you can imagine my elation when I heard about FullScreenMario, a project begun by a college kid to not only recreate the original hallmark of home-gaming, but also to allow fans to expand upon the original and build their own levels, built on the latest web standards, and open sourcing the whole thing. Unfortunately, as you've probably already expected, Nintendo saw my elation, my joy, and promptly crapped all over it.

"Nintendo respects the intellectual property rights of other companies, and in turn expects others to respect ours as well," Nintendo said in an e-mailed statement. "Nintendo is seeking the removal of the content, as we vigorously protect against infringement of our intellectual property rights."

Now, nobody can doubt Nintendo when they get all puffy chested about how vigorously they protect their IP. But why is this even an option? How far gone are we down the intellectual property rabbit hole when projects like this, which people love, and which don't (in any way) harm the original offering, are shuttered? Because whatever your thoughts about copyright in general, if there is one industry for which the never ending copyright extensions make zero sense, it's for video games. As Tim Lee notes:

When the United States was founded, the maximum copyright term was 28 years. "Super Mario Brothers" was registered with the copyright office in January 1986, so if copyrights still lasted for 28 years from the date of registration, the game would be due to expire in about three months. Then anyone would be free to re-create the game, as Full Screen Mario does, or to create new games based on its groundbreaking characters, levels and music.

If copyright terms were shorter, old video games could find a new, emulated life when their copyrights expire, just as the Gutenberg project has made thousands of books published before 1923 freely available online. That's especially important because old consoles wear out much faster than old books do. If you find a book published in 1980, chances are you'll be able to read it without much difficulty. But if you find an old Atari video game cartridge, you might struggle to find the Atari 2600 console required to play it.

In general, "might struggle" might as well be replaced with "can't." Sure, Nintendo and other companies are still building off of franchises from days gone by. So what? Recreating the original Super Mario Bros. doesn't harm any of that. Allowing users to build their own levels and engage in something like a Minecraft community would only build the brand further. We can certainly say that Nintendo would be better off not shutting this project down, say by working directly with the creator, but that shouldn't even be a question. We're at the 28 year mark for Super Mario Bros. Imagine how stupid this is all going to look in 95 years. As the article notes, even those who think gaming companies need some copyright protection should be able to see how ridiculous current lengths are.

But don't video game companies need copyright protection to encourage them to produce new video games? Of course they need some copyright protection, but 28 years is plenty. Most games make the vast majority of their revenue in the first few years after release. Only a tiny majority of mega-hits such as Super Mario Brothers are still commercially significant after 28 years. And those games have already made their investors' money back many times over. We've had long copyright terms for so long it's hard to imagine what the world would look like without them. But copyright is supposed to be a bargain between creators and the public: Creators get a monopoly for a limited number of years, and after that, the public gets to use their works for free. But copyright terms are now so long that most of us will die before the videogames of our childhoods fall into the public domain.

So thanks again, copyright, for standing in the way of us all having a little harmless fun. It makes me mad enough to stomp a turtle.

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]]>28-years-laterhttps://www.techdirt.com/comment_rss.php?sid=20131018/09433624925Tue, 13 Aug 2013 19:56:01 PDTNintendo Restricts The Number Of Times You Can Play A Game Demo For Some ReasonTimothy Geignerhttps://www.techdirt.com/articles/20130813/10170624153/nintendo-restricts-number-times-you-can-play-game-demo-some-reason.shtml
https://www.techdirt.com/articles/20130813/10170624153/nintendo-restricts-number-times-you-can-play-game-demo-some-reason.shtmlaggressive with all things Nintendo. In fact, there are times when they've appeared downright sadistic in how they "protect" their brand, including choosing the takedown bully route on fan
videos uploaded to YouTube. Still, while you'll struggle to find an instance where we agree with this kind of aggressive protection, there's at least a ghost of logic involved in them. Whether the excuse is piracy, trademark protection, or stifling competition, you at least have something to point to in order to explain their otherwise disagreeable behavior.

I downloaded the demo for The Wonderful 101, and was surprised to find this message pop up telling me that I would
only be allowed to run the demo 20 times. Now, of course I don't plan on playing a demo more than once or twice, as I'm sure most people don't. Which is why I find it so odd that Nintendo would put this restriction in place. If any game is good enough that
I would play the demo more than 20 times, then I'll be buying it to play the full experience before ever getting to that point.

It's hard to imagine how this even begins to make sense. As Marinconz said, what players out there are going to play a limited game demo that many times? And, even if such a person existed, why would they continue to play a game demo they enjoy rather than moving up to the full version? I've been running this scenario through my mind trying to understand under what circumstances would I possibly find myself replaying a game demo so often without buying the full game and I'm coming up with bupkis.

The only answer that seems to hold water is that a culture of protectionism creeps into arenas where it couldn't possibly be warranted. That would seem to jive with Nintendo's history, but it sure doesn't make a lick of sense otherwise.

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]]>https://www.techdirt.com/comment_rss.php?sid=20130813/10170624153Thu, 11 Jul 2013 23:10:45 PDTActually, Nintendo Wanted Smash Bros. Out Of EVO Tourney Entirely, Which Is Really StupidTimothy Geignerhttps://www.techdirt.com/articles/20130711/06053023763/actually-nintendo-wanted-smash-bros-out-evo-tourney-entirely-which-is-really-stupid.shtml
https://www.techdirt.com/articles/20130711/06053023763/actually-nintendo-wanted-smash-bros-out-evo-tourney-entirely-which-is-really-stupid.shtmlpulling its fighting title Smash Bros. from the internet stream of the Evolution Championship Series, before then walking back the request and allowing it after all. In that post, he noted that Nintendo appeared to be concerned, wrongly, that a stream of its game being played would somehow harm its brand, and that it was fan reaction to the move that caused its flip-flop. That all may indeed be true, but it turns out it wasn't the whole story.

Evo co-founder Joey Cuellar has revealed that Nintendo didn't just want to stop Smash Bros. Melee being streamed from this year's fighting game competition, they wanted to stop that part of the tournament taking place altogether.

"They were not only trying to shut down the stream", he told OneMoreGameTV, "they were trying to shut down the event, the Smash portion of the event".

That is even more insane. It isn't often you can take any real life lessons from the world of professional sports, but Nintendo might as well realize something: it's in the professional sports business now. Tangentially, sure, but it's in it. EVO is but one example of professional gaming competitions. The trends seem to suggest that the world of pro-gaming competitions, leagues, and tournaments is only going to grow, perhaps even exponentially. And if that trend does indeed play out, Nintendo better take a page from professional sports leagues and encourage the playing of its games, rather than trying to shut it all down.

There's a reason why Major League Baseball puts such an emphasis on building baseball fields throughout the country. The NFL knows what they're doing when they make sure they have a stake in Pop Warner football. The NBA has its players going not only around the country, but around the world to host basketball clinics. More people playing your game is good for your game. Good for breeding better players, for growing markets, and good for generating interest generally in the game itself.

If Nintendo was smart, it might consider market-testing its own gaming "stadiums" or competition centers, building upon the interest to promote its own games and encouraging others to do likewise. Trying to shut down the tournament? That's just stupid.

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]]>you're-a-sport-nowhttps://www.techdirt.com/comment_rss.php?sid=20130711/06053023763Wed, 10 Jul 2013 02:37:28 PDTNintendo Pulls Game From Evo Live Stream, Igniting Backlash; Comes To Senses Mere Hours LaterTim Cushinghttps://www.techdirt.com/articles/20130709/19453423753/nintendo-pulls-its-game-evo-live-stream-igniting-backlash-comes-to-senses-mere-hours-later.shtml
https://www.techdirt.com/articles/20130709/19453423753/nintendo-pulls-its-game-evo-live-stream-igniting-backlash-comes-to-senses-mere-hours-later.shtml
Nintendo's adversarial relationship with its fanbase continues. Following on the heels of its colossally boneheaded Let's Play YouTube land grab, the company decided to yank its Super Smash Bros. Melee from the Evo (Evoution Championship Series) live streams.

Competitive Smash Bros. fans have been working for years to gain acceptance from the greater fighting game community. Smash Bros. is very different from Street Fighter, Tekken, and Virtua Fighter, but as many have said, it still is a fighting game, despite what some of the more exclusionary members of the FGC may tell you.

These years of effort have more or less paid off. After raising nearly $100K for Breast Cancer research, Smash Bros. Melee was set to be a marquee title at Evo 2013 this weekend. As the live stream phenomena has grown in prominence and popularity over the years, so has Evo's online presence. Evo 2011 was streamed by over 2.2 million viewers (still working on digging up numbers for 2012). That's more than Bayonetta sold in the US.

Instead of being thrilled its game was going to be featured alongside other prominent fighting games, Nintendo felt the best course of action was to "protect the brand," even if that meant the company's public image would greatly resemble a bootleg window sticker featuring Calvin peeing on a pink ribbon.

Needless to say, the backlash was immediate. A petition was posted at change.org asking Nintendo to reconsider its decision. Of course, Nintendo hardly seems concerned with the public's reaction to anything at this point, so it's kind hard to imagine an internet petition changing its mind. In fact, it's hard to imagine anything changing its mind, even vague promises to support the WiiU, issued with the same momentary earnestness as the pained vows to attend church more frequently that often follow long nights of hard drinking and bad decisions.

But, as hard as it is to imagine Nintendo walking back a "protect the brand" decision, it's actually a true fact.

Update #2: Nintendo has reversed its decision! They're now allowing Melee to stream at Evo this year. Though Nintendo has its share of old codgers that don't know how to internet, maybe this proves that their younger colleagues have the capacity to shake them into reality, and in just a few hours no less.

They say you can't teach old dogs new tricks. However, it appears the old dogs still have a healthy respect for the sting of the tightly-rolled newspaper social media outlet. Is this a sign that Nintendo is now a willing participant in its own future, able (and willing) to react nimbly to a wired-in fan base, with one hand on the Tweeter and one eye alertly watching hot social indicator wthrVane? Probably not. But it shows it's at least listening.

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]]>it-can-be-taught!https://www.techdirt.com/comment_rss.php?sid=20130709/19453423753Fri, 17 May 2013 13:34:00 PDTNintendo Exchanges Goodwill For Control; Issues Mass Monetization Claims On Let's Play VideosTim Cushinghttps://www.techdirt.com/articles/20130516/16203623112/nintendo-exchanges-goodwill-control-issues-mass-monetization-claims-lets-play-videos.shtml
https://www.techdirt.com/articles/20130516/16203623112/nintendo-exchanges-goodwill-control-issues-mass-monetization-claims-lets-play-videos.shtmllong and colorful and, occasionally, completely ridiculous. No one protects the brand quite as fiercely as Nintendo does, an unfortunate byproduct of its obsession with maintaining a clean, family-friendly image.

Its latest misadventure into "controlling all things Nintendo" was brought to our attention via a post to Reddit's r/games by a prolific creator of Let's Play videos, Zack Scott. For whatever reason, Nintendo is performing a "mass claiming" of Let's Play videos featuring its titles. Scott notes in his post that Machinima has seen these claims increasing exponentially recently, pointing towards this being an active move on Nintendo's part.

As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

For more information please visit http://www.youtube.com/yt/copyright/faq.html

A few observations on this statement:

1. In terms of the internet, the present will always be relegated to some distant point in the future for Nintendo. The fact that it took until three months ago for Nintendo to join forces with the world's largest video site is astounding. This is probably has something to do with Nintendo's recent shuttering of several Wii channels, many of which were underwhelming and ignored by a majority of its customers. (The "flagship" of the lineup -- the Nintendo channel -- was one of the worst, featuring haphazardly posted content that seemed to mistake throwing darts at a lineup for curation.)

2. Nintendo's self-consciously squeaky clean image? This IP grab is about that, too. Why else would a company that only recently decided YouTube might be a viable outlet use the phrase "shared... in appropriate and safe ways" to justify slapping ads on tons of pre-existing content uploaded by its customers and fans?

3. "...unlike other entertainment companies, we have chosen not to block people using our intellectual property." Good Guy Nintendo says No Blocking! While other "entertainment companies" have blocked thousands of videos, most video game companies don't. With the exception of Sega's promotional push for its new Shining Force title that took the form of widespread takedowns, most gaming companies take a more hands-off approach, realizing that Let's Play videos are a form of advertising that costs them nothing.

Nintendo is well within their rights to monetize these videos and images. But, as anyone who's had experience with situations like this can tell you, being "within your rights" isn't the same thing as "right," either in the moral sense or in the "opposite of wrong" sense.

Nintendo can (and does) monetize gameplay videos using its IP. There are some valid arguments for fair use that can be applied here (Techdirt contributor E. Zachary Knight runs down a few over at Gamasutra), but when it comes to uploaders v. content companies, the algorithm tends to side with the YouTube partner and the registered content. Once Nintendo makes this monetization claim, there's very little the uploaders can do to fight it.

On the plus side, Nintendo isn't actually taking down videos. This means uploaders may lose the income (many uploaders have never attempted to monetize their uploads), but their accounts will remain strike-free. (Unfortunately, having several videos from the same account claimed by ContentID tends not to reflect well on the account holder and will probably be taken into consideration should other infringement issues arise.)

The money gained from applying pre-roll/post-roll ads to Let's Play videos is likely insignificant in terms of Nintendo's annual income. (It's certainly not going to make up for the WiiU's rather inauspicious debut.) Nintendo's past IP battles make this more about control than income. This also builds Nintendo a useful database of "offending" titles that it can easily block or take down by doing nothing more than changing its ContentID options.

I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review. 2. To learn about the game and how to play certain parts. 3. To see how I handle and react to certain parts of the game.

Since I started my gaming channel, I’ve played a lot of games. I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers.

There are many better ways Nintendo could have handled this (a monetization split with uploaders, an invitation to upload to Nintendo's official channel, DOING NOTHING...), but the company's antagonistic attitude towards anything it doesn't directly profit from made this situation one of the better outcomes, unfortunately.

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]]>not completely about the Benjaminshttps://www.techdirt.com/comment_rss.php?sid=20130516/16203623112Tue, 14 May 2013 05:41:00 PDT'Bug' Allows Same-Sex Marriage In Nintendo Game, Nintendo Releases Patch To 'Fix' ItTimothy Geignerhttps://www.techdirt.com/articles/20130508/10233423003/bug-allows-same-sex-marriage-nintendo-game-nintendo-releases-patch-to-fix-it.shtml
https://www.techdirt.com/articles/20130508/10233423003/bug-allows-same-sex-marriage-nintendo-game-nintendo-releases-patch-to-fix-it.shtmlSims franchise was somewhere on the forefront of that sort of thing and more recent games like the Mass Effect series finally began to follow suit. And now it appears we can add the notoriously conservative Nintendo to the list of game developers that include such characters in their games.

See, gamers playing Nintendo's Tomodachi Collection: New Life noticed that this latest iteration of the game, which is very much like The Sims, had the option for the first time to have their male characters marry other male characters and raise children together. Hooray for civil rights progress, right guys?

One Twitter user claims to have contacted Nintendo's customer support, which supposedly said this is a bug and that the game needs to be patched. Online in Japan, however, there were many internet users who said they planned on getting this game only after learning of this bug—er, feature.

That Twitter user's story now appears to be confirmed, with Nintendo releasing a patch to fix the "bug", which it says allows for "human relations that become strange." So allowing players to be as gay in their virtual lives as they might be in their real lives wasn't a feature, it was a bug. And you're going to correct it. Here's another idea, and I'm just spitballing here, but how about the fix you release doesn't take away a bit of the humanity of your latest game, but rather extends it to female characters as well? It's not like including gay characters in a game, particularly one that is all about personal choice, means that somehow the game developers all agree in unison that all the morality questions are thrown aside. I happen to think that anyone who finds a problem with homosexuality is on the wrong side of both humanity and biology, but I won't dismiss the right for other people to have a different opinion. The thing is, none of that is the point. I played the Sims. I don't remember any more of an uproar over that game's characters being able to be gay than I remember an outcry over how you used to be able to order a pizza and then build walls around the delivery guy until he died (great fun, btw). Nobody who saw that done suddenly thought EA was supporting delivery boy murder and no one with a lick of sense thought EA was taking some moral stance on gay rights.

And besides all that, the reaction to the bug? Freaking positive.

In Japan, some Tomodachi Collection: New Life owners seem thrilled by the bug, posting photos of their gay couples online. In the images, male Mii characters ask each other to go steady, propose marriage, go on Honeymoons, bathe together, and raise children.

Well, no kidding, because the metrics of the debate are shifting quickly to be more inclusive. Even if one were to think that homosexuality was immoral, you can't lose your stones about it being included in a video game, unless you're also going to take the same stance on murder, violence, theft, cursing, lying, etc. Nintendo made their bones on a stereotyped Italian plumber. Now that Nintendo has decided to erase the option to be gay from this game, I hope to hell the backlash is as brutal as it should be.

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]]>or you could, you know, nothttps://www.techdirt.com/comment_rss.php?sid=20130508/10233423003Fri, 10 May 2013 09:18:46 PDTBlogger Issues DMCA Notice To Take Down Posts Infringing His 'How To Infringe' PostTim Cushinghttps://www.techdirt.com/articles/20130507/18512622997/blogger-issues-dmca-notice-to-take-down-posts-infringing-his-how-to-infringe-post.shtml
https://www.techdirt.com/articles/20130507/18512622997/blogger-issues-dmca-notice-to-take-down-posts-infringing-his-how-to-infringe-post.shtml
Anurag Ghosh is a blogger who would like to have some infringing posts removed from the web. See if you can spot the point when Ghosh's irony detector malfunctions.

Copyright claim #0:

My article, “How to Play Nintendo DS Games on Android”, is infringed by the text excerpted on the site, beginning with the text: “Did you know that your Android device can play NDS games? With the help of an emulator (yes there is a free, open-source DS emulator out there on Google Play), you can play games like Phoenix Wright, Dragon Quest IX and Touch Detective on your phone.”

To paraphrase: "Yeah, it looks like some people have infringed my post about infringing, so if you could do me a solid and take those out, that would be great.

Ghosh's post, titled "How to Play Nintendo Games on your Android," does exactly what it says on the tin, pointing readers toward a free, open-source emulator, providing instructions on installing an NDS BIOS and directing readers towards Google to search for .nds ROMs. Ghosh has thoughtfully included the following "warning" on his post.

Downloading ROMs and BIOS files is illegal. I don’t support piracy and this guide is only for entertainment purpose. Reader discretion is advised.

The discussion about whether emulation = infringement can wait for another day, but I'm very definitely sure Nintendo considers emulation of current gen hardware/software to be infringing. In fact, Nintendo seems to get a bit irate about it when "questioned" about it, according to its extensive FAQ on emulation.

How Does Nintendo Feel About the Emergence of Video Game Emulators?

The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened. Such emulators have the potential to significantly damage a worldwide entertainment software industry which generates over $15 billion annually, and tens of thousands of jobs.

How Come Nintendo Does Not Take Steps Towards Legitimizing Nintendo Emulators?

Emulators developed to play illegally copied Nintendo software promote piracy. That's like asking why doesn't Nintendo legitimize piracy. It doesn't make any business sense. It's that simple and not open to debate.

Now, Ghosh may have a legitimate claim that his post is being scraped (or reposted) without his consent, but complaining about infringers infringing your post about infringement is more than a little like sending an official notice informing Google that listed kettles are black and infringing on your original pot's blackness. Perhaps the offending scrapers could just put up a little "warning" stating they copied Ghosh's post for "entertainment purposes only." It certainly entertained me.

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]]>yo-dawg,-i-herd-you-liked-infringement...https://www.techdirt.com/comment_rss.php?sid=20130507/18512622997Thu, 21 Feb 2013 03:51:22 PSTHistorical Hypocrisy: Donkey Kong, King Kong, & The Public DomainTimothy Geignerhttps://www.techdirt.com/articles/20130215/07520921998/historical-hypocrisy-donkey-kong-king-kong-public-domain.shtml
https://www.techdirt.com/articles/20130215/07520921998/historical-hypocrisy-donkey-kong-king-kong-public-domain.shtmlprotesting a parody of 50 Shades of Grey while conveniently ignoring that work's birth in the form of Twighlight fan-fiction. Alternatively, there are times when Universal doesn't even seem to know what it holds the rights to and what it doesn't. Well, it turns out that these stumbles aren't exactly a new experience for Universal.

Chris ODonnell writesin with the historical and hysterical case of Universal suing Nintendo over Donkey Kong shortly after Universal itself had argued that the property the dispute was based on, King Kong, was in the public domain. See, back when Michael Jackson was still best known for his music, Nintendo came up with their iconic Donkey Kong character, admittedly in some part inspired by the famous King Kong character. This inspiration, it turns out, came after the fact, but that didn't stop Universal Studios from filing suit against Nintendo, because they had released a remake of King Kong a few years earlier. While some within Nintendo wanted to simply settle with Universal and move forward, others within sought out the words of a key ally to fight against them, and that ally was Universal Studios.

Universal’s King Kong movie debuted in 1976, but it wasn’t an original story. Rather, the movie was a remake of a movie with the same title made in 1933 by RKO General. The 1976 remake came with its own round of litigation, with many parties claiming to have at least partial rights over the name, characters, and plot of the movie. Universal, however, argued that no one did, and that the characters and plot were in the public domain. In the subsequent litigation with Nintendo, the court noted this inconsistency, using it as part of the basis for finding that Nintendo’s Donkey Kong game did not infringe upon Universal’s rights (if any) over King Kong. Nintendo prevailed, and, when Universal appealed, the next court admonished Universal for its inconsistent legal logic.

Ah, sweet, sweet hypocrisy. With one hand, hitting Nintendo over the head with the IP hammer, while holding a shield against another IP hammer with the other. The court was not pleased, noting that Universal's president, Sidney Sheinberg, was clearly well versed in the intellectual property status of King Kong via the earlier lawsuit, and to then pretend the company held rights in it was clearly a move to abuse the law:

Finally, Universal's conduct amounted to an abuse of judicial processes, and in that sense caused a larger harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was part of the public domain, and then second, that King Kong was not part of the public domain, and that Universal possessed exclusive trademark rights in it. Universal's assertions in court were based not on any good faith belief in their truth, but on the mistaken belief that it could use the courts to turn a profit.

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]]>monkey-see-monkey-dohttps://www.techdirt.com/comment_rss.php?sid=20130215/07520921998Wed, 12 Dec 2012 08:04:38 PSTNintendo Still Loves DRM; The Internet Not So MuchTim Cushinghttps://www.techdirt.com/articles/20121210/15222521341/nintendo-still-loves-drm-internet-not-so-much.shtml
https://www.techdirt.com/articles/20121210/15222521341/nintendo-still-loves-drm-internet-not-so-much.shtml
Long after the other consoles had moved on to CDs and DVDs, Nintendo held onto its proprietary formats in order to protect itself from piracy. Now that the others consoles on the market have shifted emphasis towards online services, Nintendo has reluctantly joined the pack. Of course, this being Nintendo, the online experience is hampered by its continued belief that its average customer is about eight years old. And the gaming experience itself is crippled by pervasive DRM.

At Ars Technica, Kyle Orland points out that Nintendo's online service is almost great, if it wasn't for all the roadblocks set up in a futile attempt to stop infringement. While Nintendo has made some vague promises about moving to a cloud-based save feature and allows each WiiU to have up to 12 separate accounts, the underlying DRM keeps the experience from ever being much more than a frustrating mess for paying customers.

Tying downloaded games to a single system means there's no way for a user to access those games at a friend's house short of lugging the entire system along (yes, the Wii is a lot smaller and lighter than other contemporary systems, but still...). It also means a game downloaded to the Wii U in the living room won't be playable on a second system in the kids' room, even if the same password-protected Nintendo Network ID was used on both systems.

It also means that if your system breaks down, you can't just go buy a new one (or borrow one from a friend) and immediately recover your content using your account. Instead, you have to go through Nintendo's official repair process, waiting up to two weeks for the system to be returned just to maintain the system-locked license data—a caveat I learned about first hand recently. And in the extreme case your Wii U is stolen, it seems there's no way to recover your purchased games (Nintendo has refused numerous requests for comment on its DRM scheme). Sure, you can back up purchases to a USB hard drive, but thanks to this licensing scheme, those backups are no more portable than the actual bits stored on the Wii U's internal storage.

Orland's first hand experience wasn't pleasant. He had over $400 of downloaded games he was hoping to move to his WiiU. During the multistep process -- which requires both systems be on and online -- his Wii crashed. Big bold letters everywhere during the process warned against turning off either system during transfer. The data being moved isn't the important part. What's absolutely essential during this move is that the licenses transfer intact. Orland couldn't simply re-download his games since the licenses were tied to his original Wii. Nintendo's tech support informed him that there was no other way to transfer license and account data to the WiiU short of sending the Wii off for repairs at his expense and hoping it returned in working order with all data (especially those licenses) intact. The final cost? $85 for the repair and a couple of weeks with $400 worth of games in limbo.

If you have tons of content — game save data, Mii characters, and downloaded software — on your old Wii, you’ll want to transfer them over to Wii U. The process is about as convoluted as can possibly be. You’ll actually need to alternate between your Wii and your Wii U, which means either hooking them both up to the TV or swapping cables. First you have to get an SD card. Then you have to put it in your Wii U to “prepare” it for transfer. (You’ll need an internet connection to do this so Nintendo can transfer the digital rights to the software.)

Fun stuff, that. Plus, it requires an internet connection just to move your own files from one purchased system to another. Kohler points out that it takes about a half hour to pull them off the Wii and another half hour to load them onto the WiiU. But it's not just the time it takes. It's the ridiculous hoops the user is forced to jump through just to satisfy Nintendo's demands for a clean, closed, DRM-laden system.

[B]esides being time-consuming, there’s also a big missing feature. If you had games already stored on an SD card and not on the Wii’s system memory, you have to move them back to the Wii or else you can’t transfer them. But if you have games stored on the SD card in the first place, that’s probably because you ran out of memory on your Wii (not hard, since it only has 512 megabytes in there). So you are screwed. The transfer process will move over all of the digital licenses, but to get those games onto your Wii U, you’ll have to individually download every single one again from the digital store, which will take forever.

This is what you're in for when you deal with a company clearly more interested in pirates than customers. As pointed out earlier by Orland, all the ridiculous DRM crammed into every spare corner of the Wii did very little to stop piracy. Apparently, Nintendo's decided that the original Wii just didn't have enough DRM and has taken it to the extreme with its latest console. The worst aspect of its convoluted "license transfer" system is that the more you've purchased, the longer it takes. Nintendo's concern that someone, somewhere might make off with a free game has turned it into a company that punishes its biggest customers the hardest.

Then there's Nintendo's half-hearted "embrace" of the connected experience, which it approaches with the enthusiasm of someone guilted into hugging a highly contagious acquaintance. True, some of this standoffishness isn't solely Nintendo's fault. It has worked to capture a younger audience than the other consoles and as such, it is stuck following the privacy restrictions handed down by various governments in order to protect children from a variety of online menaces and nuisances. Staying in compliance with these regulations, along with its half-hearted (and deeply suspicious) approach to all things "internet", means the actual "connected" experience approaches surreality. Back to Chris Kohler:

I signed up for Nintendo Network, Nintendo’s first (!) ever attempt to create an account-based online service for its players. I clicked through the Terms of Service, skimming them. As you do. OK, I’m not going to post anything offensive, no problem. I enter my details into my profile and throw Game|Life’s URL and my Twitter handle in there so people know it’s me. Big mistake. Minutes after I posted my profile, I got a message saying that I had posted prohibited content and that Nintendo had blocked my profile pending a change. The hell? Turns out that you are strictly prohibited from posting anything on Miiverse that might allow someone to personally identify you. It didn’t specifically call out Twitter URLs, but I guess those must also be banned. Nintendo clearly doesn’t want any stories in the press about harassment (or worse) stemming from people meeting on Miiverse. So it is doing everything it can to make sure its members do not know who each other actually is.

In essence, the Miiverse is a great place to meet complete strangers but a terrible place to hang out with friends. How on earth an entire Miiverse full of strangers is supposed to prevent harassment or any other internet-related abuse is beyond me. It would seem that kids would be safer hanging out with people they know, rather than a bunch of avatars who could be anybody.

European Wii U owners are reporting being unable to buy or watch trailers for mature-rated games in Nintendo's Wii U eShop. Eurogamer reports that they are unable to access the pages for ZombiU or Assassin's Creed 3 during daytime hours, even with no parental controls set. Instead, they're greeted with the message "You cannot view this content. The times during which this content can be viewed have been restricted."

Customer service offered this response:

Dear customer, we would like to let you know that Nintendo has always aimed to offer gameplay experiences suited to all age groups, observing carefully all the relevant regulations regarding content access that are present in the various European countries. We have thus decided to restrict the access to content which is unsuitable to minors (PEGI) to the 11 P.M. - 3 A.M. time window.

Well, Nintendo's outlook is definitely brimming with optimism. Either it feels a very small minority of WiiU owners are above the age of 18, or it thinks 4 hours a day is plenty for selling mature content. Nintendo's not going anywhere anytime soon, but the focus of its business seems to have shifted to attempting to prevent bad things with much less emphasis being placed on providing good things. Fear may be a powerful motivator, but it rarely produces good work.

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]]>like-an-anti-theft-device-combined-with-a-helicopter-parenthttps://www.techdirt.com/comment_rss.php?sid=20121210/15222521341Tue, 9 Oct 2012 13:40:00 PDTSony Sues Actor For Trademark Infringement For Looking Too Much Like Himself In Another CommercialZachary Knighthttps://www.techdirt.com/articles/20121008/16091220646/sony-sues-actor-trademark-infringement-looking-too-much-like-himself-another-commercial.shtml
https://www.techdirt.com/articles/20121008/16091220646/sony-sues-actor-trademark-infringement-looking-too-much-like-himself-another-commercial.shtml

Such success never lasts, and earlier this year, the contract Sony had with Kevin Butler actor, Jerry Lambert, expired and he has moved on to other contracts. One of these new advertisement contracts is with Bridgestone Tires. Unfortunately, Lambert has starred in one ad that now has Sony up in arms. This ad features Jerry Lambert starring as an unnamed Bridgestone engineer along side two other actors portrayed playing a Nintendo Wii. This ad has resulted in Sony going over the edge, so to speak. The entertainment and electronic giant is now suing Bridgestone and Wildcat Creek, the corporation set up to manage Lambert's advertising career, for a variety of reasons, one of which is trademark infringement. You can view the original Bridgestone commercial at GoNintendo.

Sony Computer Entertainment America filed a law suit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he's become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony's intellectual property, creates confusion in the market and causes damage to Sony.

This statement is a tad confusing on first blush. It reads as if Sony is claiming trademark on the Kevin Butler likeness rather than the character itself. As such, it would seem that Sony is making the claim that Lambert starring in any commercial could cause likely confusion among consumers, resulting in them thinking that Kevin Butler is endorsing another product. This is rather absurd though. Primarily because the character Labert portrays has no name and actors portray many different characters throughout their careers.

According to a complaint filed in California federal court, the contract between Sony and Wild Creek was entered into on August 7, 2009 and contained an "exclusivity clause" that prevented Lambert from providing his services or his likeness to competing gaming system manufacturers like Nintendo.

This part at least makes some sense. A lot of contracts will contain language that prevents an employee or other contracted company or individual from working for a direct competitor for a specified time. However, to claim that the commercial with Bridgestone, a tire company, meets this definition is a stretch, even if the commercial features a Nintendo Wii. Sony then claims that Lambert's work with Bridgestone is a breach of contract, unfair competition and tortuous interference. These are quite harsh accusations and Sony will have its work cut out for it.

Next is the claim of trademark infringement.

According to the lawsuit, "With the intent of unfairly capitalizing on the consumer goodwill generated by 'Kevin Butler,' Bridgestone has used and is using the same or confusingly similar character, played by the same actor, to advertise its products or services in the commercial."

Having seen both a Kevin Butler commercial and the Bridgestone ad featuring Lambert, I find it hard to see the similarities beyond the superficial. The Kevin Butler character plays as an overly-serious and often hyperbolic character to its comedic levels. The Bridgestone ad features an excitable and fast talking character. Aside from that, Kevin Butler was built to be a VP while the Bridgestone guy is merely an engineer in an R&D department.

These differences are not going unnoticed by Bridgestone either. It has made the claim that not only are the characters different, but Sony has no actual claim on the Kevin Butler character at all.

"Mr. Lambert is one of the actors who appeared in the commercial as a Bridgestone engineer," say the defendant. "Bridgestone denies that 'Kevin Butler' appears in the Bridgestone commercial discussed herein and thus denies that he speaks or does anything whatsoever in the commercial."

Bridgestone indicates that it intends to fight the lawsuit by showing that Sony has failed to register any mark on "Kevin Butler," that the character has not acquired secondary meaning and that there is no likelihood of confusion among consumers.

This is certainly not the first time something like this has happened. Many years ago, Wendy's had a very successful advertising campaign starring Clara Peller as a little old lady asking a generic fast food chain the famous question, "Where's the beef?" She lost her job with Wendy's after she starred in a Prego commercial uttering the phrase: "I found it. I really found it."

What these accounts show is that the ownership mentality of many corporations goes beyond logos and phrases, to specific actions, characters and the actors behind them. This is certainly a dangerous line of thought for anyone to take up. While Sony most likely has a vested interest in the Kevin Butler character, claiming that its interest in the character extends as far as the actor himself is certainly going to make Lambert's career more difficult potentially to the point of halting it. If he cannot star in any commercial for fear of looking and acting too much like himself, then what point is there in continuing in an acting career?

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]]>if looks could suehttps://www.techdirt.com/comment_rss.php?sid=20121008/16091220646Tue, 3 Jan 2012 07:42:25 PSTNo, Sony Electronics, Nintendo And EA Have NOT Publicly Changed Their Position On SOPAMike Masnickhttps://www.techdirt.com/articles/20120103/00304017255/no-sony-electronics-nintendo-ea-have-not-publicly-changed-their-position-sopa.shtml
https://www.techdirt.com/articles/20120103/00304017255/no-sony-electronics-nintendo-ea-have-not-publicly-changed-their-position-sopa.shtmlNintendo, EA and Sony Electronics had dropped support of SOPA. However, the reporting on this story is highly questionable. It was based on a report from November from Joystiq about how those three companies supported the bill. But, if you read the actual article on Joystiq, you'll see that it notes that these three companies had not specifically come out in favor of SOPA, but rather had signed onto a letter from the US Chamber of Commerce (or, rather, its front group, the Global IP Center) which was sent before SOPA was introduced. While it does urge Congress to support something like SOPA, it was not a direct endorsement of SOPA itself.

Now, jump forward to last week. A number of lists have been put out listing the companies who supposedly support SOPA -- but many of the lists were made up by combining two separate lists. One was the official list from the House Judiciary site, which does, in fact, list out companies who have explicitly said they support SOPA. The other... was that letter that the Global IP Center sent. So, here's the problem. It appears that Lynley just checked the list from the House Judiciary Committee... and saw that Sony Electronics, EA and Nintendo were not on that list... and decided they must have quietly removed themselves from the list.

Here's the problem: those three companies were apparently never on that list. They were on the other list.

You can see an older version of the House Judiciary Committee list of SOPA supporters here. Note that it has GoDaddy on it, as well as all those law firms who demanded removal from the list. This was the original list that the Judiciary Committee came out with. You know what you'll see? Absolutely no mention of EA, Sony Electronics or Nintendo.

And yet... a ton of news sites have picked up on the BI story and written their own versions, claiming that those three companies have quietly dropped their SOPA support:

Yet, as far as I can tell, none of these three companies has made any statement suggesting they've changed their position at all. Perhaps they did change their position, but it's not because they're missing from the House Judiciary list... because they were never on that list as far as we can tell. It's kind of amazing to me that people kept demanding specific statements from GoDaddy to prove they'd really changed their position on SOPA but eagerly accept that these three companies have changed their position. It's really quite amazing to me that so many publications (many well respected) all seemed to key off this one, highly questionable, Business Insider report, which was based on someone who never checked the earlier list, and assumed that it must be accurate.

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]]>come on peoplehttps://www.techdirt.com/comment_rss.php?sid=20120103/00304017255Mon, 24 Oct 2011 05:35:00 PDTNintendo Fans Hijack Twitter Hash Tag Meant For Nintendo Of America CEO And Are Promptly IgnoredZachary Knighthttps://www.techdirt.com/articles/20111022/08231916467/nintendo-fans-hijack-twitter-hash-tag-meant-nintendo-america-ceo-are-promptly-ignored.shtml
https://www.techdirt.com/articles/20111022/08231916467/nintendo-fans-hijack-twitter-hash-tag-meant-nintendo-america-ceo-are-promptly-ignored.shtml took to Twitter in a bit of PR for some recent announcements from the company. However a lot of Twitter users took this to mean that he would actually be communicating with fans. Sadly, he did nothing of real note on twitter. Fils-Aime posted a total of seven tweets in a span of about 8 hours. Of these tweets, 2 contained the same announcement, two were about news already reported by the press all over the web and the rest were "open" questions asked to the Twitter community.

I am not sure what Fils-Aime had in mind for this Twitter promotion, but the fans were expecting a conversation. You can really see this when you take a look at the history of the #Regginator hash tag on Twitter. Many of the fans took the time to answer the questions asked and even to ask questions of their own. One prominent theme running over this event was that of a project called 'Operation Rainfall'. This group is dedicated to convincing Nintendo of America to release a number of popular JRPG titles in America, most of which already have English translations as they are sold in England.

Nintendo, sadly, is deaf to these requests. They have made it pretty clear that those games will not be seen in the States. On top of this, the Wii is region locked and games imported from Europe are not playable on American Wiis. In response, a number of blogs and gaming sites around the web have taken the task of teaching people how to mod their Wii consoles to bypass region locks and play these games. In the process, this exposes a lot of Wii users to the ability to not only play imported games, but also homebrew and potentially pirated games.

Ignoring all of this is not how you connect with fans. It is also not how you meet the needs of underserved customers. By ignoring fans of the Wii, not only on Twitter but for many months prior, Nintendo is risking more customers modding consoles, which we all know they hate. My advice for Nintendo is to actually connect with fans and listen to what they want. It might find some cool ideas that will increase sales -- especially when you claim that your top exec is going to be communicating on Twitter.

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]]>it's-called-connecting-with-fanshttps://www.techdirt.com/comment_rss.php?sid=20111022/08231916467Fri, 7 Oct 2011 02:21:22 PDTNintendo Thrilled To Have Game Copy Devices Found Illegal In FranceZachary Knighthttps://www.techdirt.com/articles/20111005/10565916210/nintendo-thrilled-to-have-game-copy-devices-found-illegal-france.shtml
https://www.techdirt.com/articles/20111005/10565916210/nintendo-thrilled-to-have-game-copy-devices-found-illegal-france.shtmlbanning what it terms 'game copiers' (pdf and embedded below), by which it means mod chips. This news really comes as no surprise as console manufacturers have done a pretty good job of convincing politicians around the globe that such console modding devices have no legitimate use outside piracy.

While the ruling only deals with the importation and distribution of these devices, it has not stopped Nintendo from spreading FUD among game consumers regarding these devices. According to its anti-piracy faq on mod chips:

Are infringing devices such as game copiers for Nintendo Handheld systems or mod chips for Nintendo Wii console illegal in the U.S.?

Yes. Game copiers that are used to copy video game software without authorization onto any type of memory device or the hard drive of a personal computer are illegal. They enable the user to make, play and distribute illegal copies of video game software, which violates Nintendo's copyrights and trademarks. Mod chips are also designed to circumvent the copy-protection security system and deem the detection process inoperable, enabling the console to play pirated or illegal copies of Nintendo games downloaded from the Internet. Based upon the functions of these devices, they are illegal.

Sadly, this completely avoids the fact that such devices are capable and are used frequently to run software and games that are completely free and legal. This type of misdirection is abundant on that website. These devices do what Nintendo has failed to do -- open up the platform to a wider variety of software and games.

As for Nintendo, it's continuing its efforts to fight these modding devices rather than recognize and adapt to what the consumers of its devices want. With the introduction of the iPhone and Google's Android, consumers and developers are getting accustomed to (fairly) open marketplaces for apps and games. Yet, Nintendo is still holding strong to the idea that its platforms need to be locked down and any effort to open them up to the greater development community should be stamped out. Nintendo almost fell when it refused to adapt to changes in the market before. If Nintendo isn't careful, it could end up falling once again. Who knows if it will survive that fall?

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]]>why-adapt-when-you-can-litigatehttps://www.techdirt.com/comment_rss.php?sid=20111005/10565916210Tue, 4 Oct 2011 05:03:33 PDTNo Rest For The Productive And Successful; Nintendo Sued Again Over The Wii RemoteZachary Knighthttps://www.techdirt.com/articles/20110929/09472516135/no-rest-productive-successful-nintendo-sued-again-over-wii-remote.shtml
https://www.techdirt.com/articles/20110929/09472516135/no-rest-productive-successful-nintendo-sued-again-over-wii-remote.shtmlToday's entry come to us via Gamasutra, which was alerted to the news that UltimatePointer is suing Nintendo and various retail outlets -- including Best Buy, Wal-Mart, Target, Kmart, Gamestop and more -- for violating their patent, number 7,746,321, for an "Easily Deployable Interactive Direct-Pointing System and Presentation Control System and Calibration Method Therefor" (what a mouthful). Much like ThinkOptic's patents, this one was filed in the same year Nintendo revealed the Wii to the world. Not only that, it was filed the very same month. Not implying anything, just pointing out some facts.

According to the court filing (pdf and embedded below), which was done in East Texas, of course, Nintendo is guilty of manufacturing a technology that was designed and finalized prior to the filing of UltimatePointer's patent. Which of course would mean that Nintendo and all those retailers are willfully infringing on this patent. So now, according to UltimatePointer, Nintendo owes them treble damages and licensing fees.

There is a major difference between this patent and the patents filed by ThinkOptic: the Wavit is actually available for purchase. UltimatePointer's product, the Upoint, is still under "testing", so many years later. Why bother building an actual product if you can just score a patent and sue those who really understand the technology? Once again, we are left to ponder the process that allows a company to be sued for independently developing similar technology to another prior to it being patented. This really does not breed confidence in the technology market.